[Federal Register Volume 76, Number 44 (Monday, March 7, 2011)]
[Proposed Rules]
[Pages 12295-12298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5053]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 76, No. 44 / Monday, March 7, 2011 / Proposed
Rules
[[Page 12295]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 50
[Docket No. PRM-50-92; NRC-2008-0492]
James Luehman; Denial of Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; denial.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is denying a petition for rulemaking (PRM) submitted by James Luehman
(the petitioner). The petitioner requests that the NRC amend the NRC's
standard for sustaining a whistleblower retaliation violation of the
Employee Protection Rule. The NRC is denying PRM-50-92 for the reasons
stated in this document.
ADDRESSES: Publicly available documents related to this petition for
rulemaking may be accessed using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied, for a fee, publicly available documents at the NRC's
PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland 20852.
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available electronically at the NRC's Electronic Reading Room at
http://www.nrc.gov/reading-rm/adams.html. From this page, the public
can gain entry into ADAMS, which provides text and image files of the
NRC's public documents. If you do not have access to ADAMS or if there
are problems in accessing the documents located in ADAMS, contact the
NRC PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail
to [email protected].
Federal Rulemaking Web Site: Supporting materials related
to this petition for rulemaking can be found at http://www.regulations.gov by searching on Docket ID: NRC-2008-0492. Address
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: [email protected].
FOR FURTHER INFORMATION CONTACT: Kimberly Sexton, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone: 301-415-1151; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
The Petition
Title 10 of the Code of Federal Regulations (10 CFR) Sec. 2.802,
``Petition for Rulemaking,'' provides an opportunity for any interested
person to petition the Commission to issue, amend, or rescind any
regulation and on June 26, 2008, the petitioner submitted a PRM
requesting that the NRC amend 10 CFR 50.7, ``Employee Protection.''
Section 50.7 prohibits discrimination by an NRC licensee, among others,
against an employee for engaging in certain protected activities.\1\
This regulation is commonly known as a ``whistleblower'' protection
provision. Similar provisions are found in 10 CFR parts 19, 30, 40, 52,
60, 61, 63, 70, 71, 72, and 76.
---------------------------------------------------------------------------
\1\ The NRC can take an enforcement action, including orders and
civil penalties, against licensees, applicants, or contractors or
subcontractors of licensees or applicants who violate Section 50.7
and may do so because the Atomic Energy Act of 1954 authorizes the
NRC to prohibit employee discrimination that is based on protected
activity, 42 U.S.C. 2201(c) and (o), 2133, 2236(a), and provides
broad authority for the NRC to protect workers against retaliation
for raising safety concerns. Union Electric Co. (Callaway Plant,
Units 1&2), ALAB-527, 9 NRC 126 (1979).
---------------------------------------------------------------------------
The legal standard by which the NRC determines whether a violation
of Section 50.7 has occurred was decided by the Commission in the
Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; Sequoyah
Nuclear Plant, Units 1 and 2; Browns Ferry Nuclear Plant, Units 1, 2,
and 3), CLI-04-24, 60 NRC 160 (2004) (TVA) enforcement proceeding. In
TVA, the Commission held that in evaluating whether a violation of
Section 50.7 has occurred, licensing boards must address two questions:
1. Did the NRC Staff show, by a preponderance of the evidence,
that protected activity was a ``contributing factor'' in an
unfavorable personnel action?
2. Did the employer show, by ``clear and convincing evidence,''
that it would have taken the same personnel action regardless of the
protected activity?
TVA, CLI-04-24, 60 NRC at 194.
These two questions were adapted by the Commission from Section 211
of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
5851. Section 211 offers protection, through the U.S. Department of
Labor (DOL), to employees who have been fired or otherwise
discriminated against as a result of engaging in protected activities.
S. Rep. No. 95-848, at 29 (1978). Under Section 211, to prove a
violation, employees must demonstrate by a preponderance of the
evidence that the protected activity ``was a contributing factor in the
unfavorable personnel action alleged in the complaint.'' Relief to the
employee, however, may not be granted if the employer can demonstrate
``by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of such behavior.'' Public
Law 102-486, Section 2902(d), 106 Stat. 2776, 3123-24 (amending 42
U.S.C. 5851(b)).
The petitioner's proposed new regulatory standard would allow the
NRC, in evaluating the evidence, to conclude that a whistleblower
retaliation violation has occurred without regard to whether the
licensee has demonstrated by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the absence
of protected activity. Thus, the petitioner's proposed approach would
apply the clear and convincing evidentiary standard not to the question
of whether a violation has occurred but to the determination of the
sanction to be imposed for the violation.
The petitioner requests that the NRC amend its standard for
sustaining a whistleblower retaliation violation of the Employee
Protection Rule based on two asserted changes in circumstance
reflecting that a departure from TVA is now needed. First, the
petitioner states that there is sufficient anecdotal evidence to
suggest that the Commission's TVA decision may be having an adverse
effect on how potential filers of complaints view NRC handling of
discrimination cases, as well as how such cases are being evaluated by
the NRC staff. The petitioner cites as evidence ``a significant recent
decline in the number of discrimination allegations submitted
[[Page 12296]]
as well as a decline in the percentage of discrimination allegations
that were determined to meet the threshold for investigation.'' Second,
the petitioner states that because of the probable new construction of
power reactors under 10 CFR part 52 and the Department of Energy's
application for a high-level waste repository, a clarification of the
Employee Protection Rule is necessary.
In support of this request, the petitioner provides eight arguments
for changing the Commission ruling in TVA. Each of the arguments is
described below.
The petitioner first argues that the addition of the clear and
convincing test in effect raises the standard for concluding a
violation exists from a preponderance of the evidence (meaning that it
is more likely than not that a violation occurred) to a higher standard
of ``somewhere between preponderance [of the evidence] and clear and
convincing [evidence].'' Accordingly, the petitioner views TVA as
making it more difficult to prove a violation of the Employee
Protection Rule. The petitioner argues that the legal requirements of
Section 50.7 of the Employee Protection Rule and Section 211 of the ERA
are satisfied by the lesser standard of evidence, i.e. when it is shown
by a preponderance of the evidence that discrimination was ``a
contributing factor'' in the adverse action against the employee. The
petitioner states that the licensee may raise the defense that clear
and convincing evidence demonstrates it would have taken the same
unfavorable personnel action in the absence of protected activity only
as a defense in the sanction determination process, not as a defense to
the question of whether a violation has occurred.
Second, the petitioner states that the additional clear and
convincing test identified in TVA directly conflicts with the present
language of Section 50.7(d). That provision provides that adverse
actions taken by an employer, or others, against an employee may be
predicated upon nondiscriminatory grounds and that an employee's
engagement in protected activities does not automatically render him or
her immune from discharge or discipline for legitimate reasons or from
adverse action dictated by nonprohibited considerations. The petitioner
argues that TVA changed the application of Section 50.7(d) such that
``the prohibition against discrimination now applies, if and only if,
the employer is unable to show by clear and convincing evidence that
the adverse action would have been taken in absence of the protected
activity.'' The petitioner believes this ``will cause and in fact may
now be causing some number of people to not enter the process given the
reduced chances of success.''
The petitioner's third, fourth, and fifth arguments essentially
state that the clear and convincing test does not exist in Section 211
of the ERA for the determination of a violation and thus should not be
used by the NRC for that purpose. The petitioner cites the decision of
an NRC Atomic Safety and Licensing Board (Licensing Board) in Tennessee
Valley Authority, LBP-03-10, 57 NRC 553 (2003) as support for modifying
the Section 50.7 Employee Protection Rule so that the ``clear and
convincing'' question is considered in the sanction determination
process, not in determining whether a violation has occurred .
Sixth, the petitioner states that there is a possibility of an
inconsistent regulatory message if the DOL finds a violation of Section
211 of the ERA but the NRC does not find a violation of the Employee
Protection Rule of Section 50.7 for the same set of underlying facts.
Seventh, the petitioner states that the Commission's decision in
TVA could cause employees to fear retaliation because TVA demonstrates
``that some amount of retaliation is in fact acceptable.''
Finally, the petitioner states that the test established in TVA is
not necessary to ensure that the staff appropriately applies the
Section 50.7 Employee Protection Rule.
The NRC reviewed the request for rulemaking and determined that the
request met the minimum sufficiency requirements of 10 CFR 2.802 and
therefore was considered as a petition for rulemaking. Accordingly, the
NRC docketed the request as PRM-50-92 on July 9, 2008. The NRC notified
the petitioner of this decision by letter dated July 15, 2008. Due to
this PRM's primary focus on the continued viability of a Commission
adjudicatory decision, it was deemed a legal matter and thus, the NRC
did not prepare a notice of receipt and request for comment, and
instead began consideration of the request.
Background
In TVA, the NRC staff issued an $110,000.00 Order Imposing Civil
Monetary Penalty to the Tennessee Valley Authority for its non-
selection of an employee to a competitive position due, in part, to
that employee's having engaged in protected whistleblowing activities.
Tennessee Valley Authority, LBP-03-10, 57 NRC 553. The Tennessee Valley
Authority did not deny that the employee had engaged in protected
activities; however, it stated that the employee's non-selection was
made solely for legitimate business reasons and requested a hearing on
the imposition of the penalty. After a 25-day evidentiary hearing, the
Licensing Board determined that the Tennessee Valley Authority violated
Section 50.7 based solely on a standard of ``whether the Staff can
prove by a preponderance of the evidence that the complainant's
protected activity was a contributing factor in an adverse action.''
Having found a violation, the Licensing Board then reduced the civil
penalty to $44,000.00 because of ``the small role that protected
activities may have played in leading to the adverse action.''
The Tennessee Valley Authority appealed the Licensing Board's
ruling to the Commission. The Commission agreed to review the decision,
and also raised its own question of whether the Licensing Board applied
the correct legal evidentiary standard when determining whether to
mitigate a civil penalty arising from a violation of the Employee
Protection Rule. TVA, CLI-03-09, 58 NRC 39. On appeal, the Tennessee
Valley Authority argued that the Licensing Board erred by not following
the evidentiary framework established in discrimination cases like
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). Id. at 190. The NRC staff,
on the other hand, provided essentially the same argument as the
petitioner does now, that it need only prove by a preponderance of the
evidence that the complainant's protected activity was a contributing
factor in an unfavorable personnel action without looking to whether
the employer would have taken the same action in the absence of the
complainant's protected activity.\2\
---------------------------------------------------------------------------
\2\ Before the Licensing Board, the staff argued that ``[t]he
appropriate standard to apply in a section 50.7 violation case is
whether the Staff has proven by a preponderance of the evidence that
the complainant's protected activity was a contributing factor in an
unfavorable personnel action. The Board should not consider whether
the employer can demonstrate by clear and convincing evidence that
it would have taken the same action in the absence of the
complainant's protected activity. A section 50.7 violation is based
on the employer's actual motives; if one of the employer's motives
for taking the adverse action was the complainant's protected
activity, the employer has violated section 50.7.'' ``NRC Staff
Pretrial Legal Brief'' (Mar. 1, 2002) (ADAMS Accession No.
ML020660033). The staff maintained its position before the
Commission on appeal. ``NRC Staff's Brief in Response to CLI-03-10
Regarding Standards by Which a Licensing Board Should Mitigate a
Civil Penalty in a Discrimination Case'' (Oct. 2, 2003) (ADAMS
Accession No. ML032820036).
---------------------------------------------------------------------------
The Commission disagreed with the NRC staff and decided that it was
appropriate for Licensing Boards in
[[Page 12297]]
whistleblower discrimination cases to ask two questions, adapted from
Section 211 of the ERA, to determine whether a violation of 10 CFR 50.7
---------------------------------------------------------------------------
exists:
1. Did the NRC Staff show, by a preponderance of the evidence,
that protected activity was a ``contributing factor'' in an
unfavorable personnel action?
2. Did the employer show, by ``clear and convincing evidence,''
that it would have taken the same personnel action regardless of the
protected activity?
TVA, CLI-04-24, 60 NRC at 194. The Commission attempted to ``make[]
clear that engaging in protected activities does not immunize employees
`from discharge or discipline for legitimate reasons or from adverse
action dictated by non-prohibited considerations.' '' Id. at 192-93. In
establishing this test, the Commission believed that employers should
be offered ``the same right of defense in an NRC enforcement proceeding
as Section 211 gives them in a Department of Labor compensation
proceeding--i.e., the right to defend against a whistleblower
discrimination charge on the ground that they would have taken the same
personnel action regardless of the employee's protected activities.''
Id. at 192-193. The clear and convincing test dovetails with Section
50.7(d) to provide that protection and while the Commission looked to,
and tracked, Section 211's evidentiary framework, it emphasized that
Section 50.7 does not adopt it. Id. at 194.
The Commission also defined what constitutes a ``contributing
factor'' in an adverse employment action. Although both parties in TVA
agreed that Section 211's ``contributing factor'' causation standard
should apply, the parties could not agree on what that standard
entails. TVA, CLI-04-24, 60 NRC at 195. First, the Commission looked to
Congressional intent. ``Congress did not enact Section 211's
`contributing factor' test in a vacuum,'' but instead patterned it
after similar whistleblower protection statutes in other industries.
Id. at 196. Congressional intent in using the ``contributing factor''
test in other industries evidenced a desire to lessen the burden on
plaintiffs in making their case, and in turn to make it more difficult
for defendants to avoid liability. Id. Thus, after looking to case law
involving whistleblower statutes similar to Section 211, the Commission
held that the correct questions to ask in determining whether the
protected activity was a ``contributing factor'' in the adverse action
was: whether the ``protected activity contributed `in any degree' or
played `at least some role' in [the employer's] personnel decisions''
as opposed to whether it was a ``significant'' or ``motivating''
factor. Id. at 196-97. The Commission, however, was quick to point out
that this is not a ``toothless'' test:
An employee may not simply engage in protected activities and
expect immunity from future unfavorable personnel actions. Mere
employer (or supervisor) knowledge of the protected activity does
not suffice as a ``contributing factor;'' nor does ``the equivalent
of adding `a drop of water into the ocean.' '' The evidence, direct
or indirect, must allow a reasonable person to infer that protected
activities influenced the unfavorable personnel action to some
degree. In cases where the evidence is weak, employers should be
able to avoid liability by providing ``clear and convincing
evidence'' that they would have taken the same personnel action
anyway, based on non-discriminatory grounds.
Id. at 197. Therefore, finding a contributing factor does not
necessarily end the analysis; ``under section 211 (and under analogous
whistleblower laws) employers still may avoid liability if they show,
by `clear and convincing evidence,' that they would have taken the same
unfavorable personnel action even in the absence of whistleblowing.''
\3\ Id. at 198.
---------------------------------------------------------------------------
\3\ Ultimately, the Commission affirmed in part, and reversed in
part, the Licensing Board's Order, and remanded the case to the
Licensing Board for further action. On November 10, 2004, the
Licensing Board approved a settlement agreement between Tennessee
Valley Authority and the NRC and terminated the proceedings. TVA,
LBP-04-26, 60 NRC 532 (2004).
---------------------------------------------------------------------------
NRC Evaluation
Within the context of the Commission's TVA decision, the NRC has
reviewed the petition and has decided to deny PRM-50-92. As stated
above, in deciding TVA, the Commission had before it the NRC staff's
position as to the appropriate evidentiary standard under the Employee
Protection Rule. The standard advocated by the staff in 2002 is
fundamentally the same position now advocated by the petitioner. In
2004, when the Commission ruled in TVA, it explicitly elected an
approach that is different from that proposed by the petitioner. In
overturning the Licensing Board's decision, and the standard advocated
by the staff in TVA, the Commission fully considered the option of
using the clear and convincing question solely in the sanction
determination process, and chose not to elect this approach. Further,
the Commission also considered, and dismissed, the possibility of an
inconsistent regulatory message in TVA.\4\ Thus, the Commission's
approach in TVA was adopted with full knowledge of the position and
arguments currently advocated by the petitioner.
---------------------------------------------------------------------------
\4\ In fact, the staff argued this very same point to the
Commission in the ``NRC Staff Reply to Initial Briefs of the
Tennessee Valley Authority and the Nuclear Energy Institute'' (Nov.
3, 2003) (ADAMS Accession No. ML033240178), which the Commission
directly rejected: ``In practical terms, because we see few
whistleblower enforcement adjudications at the NRC, because varying
evidentiary frameworks are not necessarily outcome-determinative,
and because the NRC's general enforcement policy is to give
deference to DOL's whistleblower determinations, our disagreement
with DOL on how to apply section 211 in adjudications is unlikely to
lead to inconsistent results between the agencies very often, if at
all.'' TVA, CLI-04-24, 60 NRC at 192.
---------------------------------------------------------------------------
Contrary to the petitioner's understanding, TVA did not raise the
NRC staff's burden of proving a violation to ``somewhere between
preponderance and clear and convincing.'' The staff's burden for
proving retaliation is always preponderance of the evidence. Once the
NRC staff meets its burden, the employer may proffer an affirmative
defense by clear and convincing evidence, a higher standard for the
employer to meet, that it would have taken the same personnel action
anyway, regardless of the whistleblowing activity. The petitioner
mistakenly treats the second part of the TVA test as a standard the NRC
staff must refute to take enforcement action, rather than recognizing
it as, in essence, an affirmative defense that the licensee may, but is
not required to, address.
Further, TVA does not establish that ``some amount of retaliation
is in fact acceptable.'' Instead, TVA states that if the protected
activity affected or contributed to the adverse action ``in any way,''
``in any degree,'' or ``played `at least some role','' the staff will
satisfy the Commission's ``contributing factor'' test. TVA, CLI-04-24,
60 NRC at 197. The staff does not have to show that the protected
activity played a ``significant,'' ``motivating,'' ``substantial,'' or
``predominant'' factor in the adverse action. Id. But, the staff must
show more than mere employer knowledge of the protected activity or the
equivalent of adding a ``drop of water into the ocean.'' Id.
The Commission recognized in establishing the two-part test that
although the NRC staff may demonstrate by a preponderance of evidence
that the contributing factor test is met ``where the evidence is
weak,'' id. at 197, the Commission did not expect for the NRC staff to
prevail in weak cases--only in those where the employer does not prove
by a high standard of proof that it would have taken the same action
absent protected activity. See id. at 192 (``In cases where the
evidence is weak, employers should be able to avoid
[[Page 12298]]
liability by providing `clear and convincing evidence' that they would
have taken the same personnel action * * *''). By contrast, in cases
where the staff has stronger evidence that protected activity was a
contributing factor, such as when a document or employer's statements
confirm an allegation of whistleblower discrimination, it would be
unlikely that the employer could make its case by clear and convincing
evidence that it would have taken the adverse action regardless. Thus,
the Commission in TVA did not condone ``some amount of retaliation'';
rather, it established the standards for determining the existence of
whistleblower discrimination if a violation is challenged by an
employer.
In deciding TVA, the Commission looked to Section 211 for
procedural guidance in applying Section 50.7 and generally adopted
Section 211's overall framework. Id. at 194. The Commission, however,
is not required to follow Section 211's evidentiary standard. Id. at
193-194.\5\ Section 211 establishes DOL's authority to take action in
cases involving whistleblower discrimination, id. at 194, but the NRC's
authority to regulate against employee discrimination is derived from
the Atomic Energy Act of 1954. Therefore, Section 211 should not be
construed as directing the NRC's evidentiary approach.
---------------------------------------------------------------------------
\5\ ``It is true that our whistleblower regulation, section
50.7, does not adopt the Section 211 evidentiary paradigm as such,
but neither does it adopt the McDonnell Douglas or Price Waterhouse
paradigms. Our regulation is prohibitory, not procedural. It renders
discriminatory conduct unlawful, but does not purport to prescribe
evidentiary standards and approaches for use in NRC enforcement
litigation.''
---------------------------------------------------------------------------
Further, contrary to the petitioner's assertion, the discrimination
data from 1999-2009 do not appear to evidence any meaningful trends
because the data fluctuates up and down during the years prior to and
following TVA (2004); in some years since TVA, the number of
discrimination claims filed is higher than in the years directly
preceding TVA and in others that number is lower. Also, because the
data does not differentiate claims failing to meet the threshold prima
facie determination from those that were withdrawn by the alleger or
came to the NRC as third-party claims,\6\ it is unknown whether there
is any change in the percentage of discrimination allegations that were
dismissed or withdrawn because they failed to meet the threshold for
investigation, as the petitioner asserts.
---------------------------------------------------------------------------
\6\ Third party claims are those discrimination claims that come
to the NRC from an individual other than the employee who was
allegedly discriminated against.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calendar year
-------------------------------------------------------------------------------------------------------------
1999 2000 2001 2002 2003 2004 \7\ 2005 2006 2007 2008 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
TOTAL DISCRIMINATION CLAIMS............... 139 144 108 97 96 97 118 88 84 94 116
Total Claims Resolved/\8\% of Total Claims 91/65.5 91/63.2 75/69.4 55/56.7 70/72.9 75/77.3 73/61.9 37/42.0 52/61.9 34/36.2 10/8.6
NRC Substantiated/% of Total Claims....... 6/4.3 6/4.2 8/7.4 0/0 4/4.2 3/3.1 1/0.9 2/2.3 0/0 1/1.1 0/0
NRC Not Substantiated/% of Total Claims... 83/59.7 84/58.3 66/61.1 55/56.7 64/66.7 66/68.0 63/53.4 23/26.1 42/50.0 16/17.0 7/6.0
Settlements/\9\% of Total Claims.......... 2/1.4 1/0.7 1/0.9 0/0 0/0 6/6.2 9/7.6 9/10.2 10/11.9 17/18.1 3/2.6
Claims Still Open/% of Total Claims....... 0/0 0/0 0/0 1/1.0 2/2.1 1/1.0 3/2.5 1/1.1 2/2.3 13/13.8 58/50.0
Claims Not Warranting NRC Review/\10\% of 48/34.5 53/36.8 33/30.6 41/42.3 24/25.0 21/21.6 42/35.6 50/56.2 30/35.7 47/50.0 48/41.3
Total Claims.............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\The data contained in this table was obtained from the Allegation Management System.
Finally, the TVA decision has had no effect on the way the NRC
staff approaches or evaluates whistleblower discrimination claims. That
is, the NRC staff continues to issue notices of violations of the
Employee Protection Rule to licensees, applicants, and contractors or
subcontractors of licensees and applicants based on its assessment as
to whether the evidence shows that protected activity was a
contributing factor in the adverse action, while also taking into
consideration credible evidence that the employer would have taken the
same personnel action regardless of the protected activity.
---------------------------------------------------------------------------
\7\ 2004 represents both: (1) The year when the Commission
decided TVA and (2) the year that the interim program regarding the
voluntary use of Alternative Dispute Resolution (ADR) in addressing
discrimination complaints and other allegations of wrongdoing was
adopted in the NRC's Enforcement Policy.
\8\ Refers to the number of discrimination claims for which
either: (1) The NRC's Office of Investigations (OI) reached a
conclusion and (2) those that did not involve an OI investigation
and were settled via early-ADR (or licensee-sponsored internal
mediation) or in the DOL.
\9\ These numbers represent the number of cases settled either
through early-ADR or in the DOL. However, the table does not reflect
cases that involved DOL settlements between 1/1999 and 9/2004 that
also involved an OI case. For information only, those numbers are:
1999--10; 2000--7; 2001--7; 2002--3; 2003--9; and 2004--3.
\10\ These numbers represent the number of claims that did not
meet the threshold prima facie determination, were withdrawn by the
alleger, or came to the NRC as third-party claims. These numbers do
not take into account that some of the open claims might eventually
be found to not meet the prima facie determination or could be
withdrawn by the alleger.
---------------------------------------------------------------------------
Public Comments on the Petition
Due to this PRM's primary focus on the continued viability of a
Commission adjudicatory decision, it was deemed a legal matter and
thus, the NRC did not prepare a notice of receipt and request for
comment, and instead began consideration of the request. Accordingly,
there are no public comments on this petition.
Determination of Petition
For reasons cited above, the NRC is denying PRM-50-92.
Dated at Rockville, Maryland, this 28th day of February 2011.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-5053 Filed 3-4-11; 8:45 am]
BILLING CODE 7590-01-P